One of the primary purposes for which policyholders purchase D&O insurance is to provide directors and officers with defense cost protection in the event claims are made against them. However, a September 15, 2011 decision by a justice of the New Zealand High Court in Auckland (here) found that former directors of the defunct Bridgecorp companies are not entitled to advancement under the companies’ D&O insurance policies of the costs of their criminal defense where the companies’ liquidators and receivers have raised (but not yet proven or even filed) claims against them exceeding the policy’s limits of liability.
Though the decision reflects a peculiar feature of New Zealand law, it nevertheless may have some noteworthy implications, particularly in light of the larger D&O insurance industry’s ongoing efforts to develop insurance solutions that operate globally and respond locally.
The Bridgecorp group operated as a real estate development and investment firm. (For more information about the Bridgecorp group and its demise, refer here.) When it collapsed in July 2007, the group owed investors nearly NZ$500 million. The group’s former directors face numerous criminal and civil claims arising out of the collapse. Trial on the criminal charges was to take place this fall. The accompanying civil charges have been stayed pending the outcome of the criminal claims.
Separately, the liquidators and receivers for the Bridgecorp group companies have advised the directors that they intend to initiate civil proceedings against them, alleging that the directors breached their statutory and common law duties, and seeking an order requiring the directors to pay more than NZ$450 million.
At the time of its collapse, the Bridgecorp group carried NZ$20 million in D&O Insurance. The group also carried $2 million of statutory liability defense cost protection (the “SL policy”), but the limits of the SL policy have already been exhausted in payment of the directors’ attorneys’ fees. The directors now seek to have the D&O insurance fund their continuing criminal defense, which they estimate will amount to NZ$3 million through trial, exclusive of any post-trial proceedings.
The Bridgecorp group liquidators and receivers advised the group’s D&O insurer that they assert a “charge” under Section 9 of the Law Reform Act of 1936, which they contend creates a priority entitlement in claimants’ favor over monies that may be payable under any insurance policy held by the person against whom the claim is made. The Bridgecorp group directors in turn initiated an action seeking a judicial declaration that Section 9 does not prevent the insurer from meeting its contractual obligation under the D&O policy to reimburse them for their defense costs.
The September 15 Ruling
On September 15, 2011, New Zealand High Court (Auckland Registry) Justice Graham Lang ruled in favor of the Bridgecorp group’s liquidators and receivers, ruling that the receivers’ and liquidators’ “charge” on the D&O insurance policy’s limits of liability under Section 9 “prevents the directors from having access to the D&O policy to meet their defence costs.”
Section 9 (which is set out verbatim in paragraph 19 of Justice Lang’s opinion) arises out of the personal injury context and gives the claimant a “charge” over liability insurance policy proceeds as of the date the claimant’s injury arose. As Justice Lang stated, the provision provides a “procedural mechanism” to ensure that a claimant can “gain direct access to insurance monies that would have been available to the insured.”
Justice Lang acknowledged that the Bridgecorp group’s receivers’ and liquidators’ “charge” on the D&O policy’s proceeds is “conditional” upon the need for the prospective claimants’ ability to establish that the directors are liable, as well as upon the need for the directors or the claimants to establish that the directors are entitled to coverage under the policy.
Notwithstanding the fact that the receivers and liquidators claim on the policy proceeds is merely “conditional,” Justice Lang nevertheless held that it operated to bar the payment of the directors’ immediate criminal defense expenses. Justice Lang reasoned that because the receivers and liquidators claims are “for a sum significantly greater than the amount of cover available under the D&O policy,” the insurer is “bound to keep the insurance fund intact.”
Though the result might be different where the amount claimed is less than the limit of liability, where as here the amount of the claims exceed the limits of liability, any payments the insurer makes “must be for the purposes of satisfying any liability the directors may have to civil claimants,” to the point that if the insurer were to pay any defense costs, it “would be liable to restore the amount of any such payment to the pool of money available under the policy” in order to meet the claims of any claimants.
Justice Lang acknowledged that this result “may be harsh” for the directors, produces some “unsatisfactory consequences,” and may “seem unfair.” But he nevertheless reasoned that this result was “clearly in accordance with the object and purpose of [section] 9.” He added that the outcome was “partly the result of the fact that the Bridgecorp companies elected to take out an insurance policy that provided cover for both defence costs and claims for damages and compensation,” and is a “direct consequence of the statutory regime the Act introduced nearly 80 years ago.”
At one level, this decision represents nothing more that the application of a peculiar feature of New Zealand statutory law. Moreover, informed sources advise me that the decision in under appeal, so it may or may not stand even within its own jurisdiction.
But at another level, this decision does raise some noteworthy implications of wider significance. The first and foremost is that it shows the significant danger that both policyholders and insurers may face with respect to the scope of D&O insurance coverage available around the world in the many jurisdictions where the interpretive case law is as yet undeveloped.
The threat of D&O claims throughout the world has expanded significantly in recent years, and with this increased exposure the potential significance of D&O insurance protection has also grown. Global companies increasingly seek to put in place D&O insurance protection applicable in the various countries in which they operate. But as this decision shows, D&O insureds facing claims in jurisdictions where the interpretive case law is undeveloped may not always know how the local courts will interpret and apply their policy.
One possible solution to this concern might be the inclusion in the D&O insurance policy of a choice of law provision designed to ensure that the policy will be interpreted according to the laws of jurisdictions where the coverage interpretations are more developed and therefore more predictable. Of course, this solution may be dependent upon the willingness of the court’s in the forum jurisdiction to recognize and apply the choice of law provision as written, as well as the apply the specified law according to expectations and assumptions. (Refer here for more thoughts about the potential need for choice of law provisions in D&O insurance policies.)
As Justice Lang himself acknowledged, there is something particularly “unsatisfying” about an outcome where the mere inchoate and as yet unfiled claim of a prospective claimant can take priority over the insured persons’ immediate need for criminal defense cost protection under the policy, particularly where, as Justice Lang also acknowledged “the Bridgecorp companies took the policy out at least in part for that specific purpose.”
In that regard, it is worth noting that this policy does not appear to contain so-called “entity coverage” (see paragraph 14 of the opinion). Accordingly, this policy clearly was intended solely for the protection of the insured directors and officers. Yet even though the policy for the individual insureds’ protection, Justice Lang’s interpretations of Section 9 subordinates the insureds’ immediate entitlement to the policy proceeds to the mere unproven claims of prospective claimants. The consequences of this topsy-turvy inversion is not just “harsh,” but grotesque as it leaves these individuals facing serious criminal charges without the very protection the insurance was designed to provide.
Justice Lang acknowledge that this result might not apply where the amount of the claims do not exceed the D&O insurance policy’s limits of liability, which would seem to suggest even more perversely that the more serious the claims against the directors and officers, the less likely they are to be able to rely on the defense protection under their D&O insurance policy.
The solution for the protection of corporate directors and officers in New Zealand would seem to be to separate out their defense cost coverage from the liability protection under their D&O insurance policy. If the Bridgecorp case is affirmed on appeal, it would seem that the New Zealand D&O insurance marketplace will have to evolve to provide a policy that avoids that pitfalls that this case presents — or seek to have Section 9 amended to recognize the need for corporate defendants to be able to rely on their D&O insurance to defend themselves.
One other possible solution to the problem presented by this case is to arrange for defense costs to be outside the limits of liabilty (that is, to structure the policy so that defense expenses do not erode the limit of liability). Although D&O insurance typically is not structured that way, it sometime is — indeed, if I am not mistaken, in Quebec it is required by applicable regulations that defense costs must be outside the limits of D&O insurance policies.
One thing this decision shows is how early the D&O insurance industry is in the process of trying to provide comprehensive global D&O insurance policies that will operate predictably in the various jurisdictions in which it may be applied. The D&O insurance industry has been working hard in recent years to develop policies that will operate globally and respond locally. The Bridgecorp decision underscores the significant challenge that the industry faces in trying to ensure that D&O insurance will predictably be available at the local level, particularly in jurisdictions where the coverage interpretations are as yet undeveloped.
Perhaps it is owing to its antipodal provenance, but it seems to me that Section 9 (at least as interpreted by Justice Lang) stands the very idea of liability insurance on its head. Liability insurance does not exist to protect claimants, it exists to protect the insureds. Insurance buyers procure the insurance to protect themselves from third party lawsuits. The very idea that a mere assertion of a prospective claim, no matter how spurious, is enough to strip the insured under a liabiltiy policy of the proection they procured for themselves is questionable in its very approach to teh insurance equation. I hope that the appellate court (or if necessary the New Zealand Parliament) will give due consideration to the nature and purposes of liabiltiy insurance and vacate the ruling of this case.
An October 4, 2011 memorandum about the Bridgecorp decision from the Minter Ellison Rudd Watts law firm can be found here. An October 2011 Bulletin from Willis New Zealand about the decision can be found here.
Special thanks to the several loyal readers who sent me links about this opinion.